received hand delivered . i in the supreme court of …
TRANSCRIPT
R E C E I V E DHAND DELIVERED .
IIN THE
SUPREME COURT OF THE UNITED
October Term 1993
No. A-64
JESSICA DeBOER (a/k/a Baby Girl Clausen)by her next friend, Peter Darrow,
Petitioner,
v.
ROBERTA and JAN DeBOER,Respondents,
and
CARA and DANIEL SCHMIDT,Respondents.
MOTION OF CONCERNED ACADEMICS FOR LEAVE TO SUBMIT BRIEF AMICICURIAE AND BRIEF AMICI CURIAE IN SUPPORT OF STAY APPLICATION OF
PETITIONER JESSICA DeBOER
Amici CuriaeConcerned Academics
Elizabeth BartholetKatharine T. BartlettDavid L. ChambersSamuel EstreicherFrank F. Furstenberg, Jr.Joseph GoldsteinSonja GoldsteinDavid J. HerringJoan Heifetz HollingerMartha L. MinowRobert H. MnookinAnthony RostainLinda J. SilbermanJane M. SpinakJoan Gubin TolchinLaurence H. TribeBarbara Bennett Woodhouse
Joan Heifetz HollingerUniversity of California(Boalt Hall)
l Barbara Bennett WoodhouseUniversity of Pennsylvania
Aaron C.F. Finkbiner, III(Counsel of Record)Nancy J. BregsteinPaul D. SnitzerDechert Price & Rhoads4000 Bell Atlantic Tower1717 Arch StreetPhiladelphia, PA 19103-2793(215) 994-2000
Counsel for Concerned Academicsas Amici Curiae
The above concerned academics hereby respectfully move for
leave to submit the attached brief amici curiae in this case. The
attorneys for all parties have been notified of the intent of the
academics to submit the attached brief.
The interests of many of the academics in this case arise
from their professional efforts which are devoted to the study and.
research of legal and social science issues bearing on the welfare of
children and families. Others are expert in issues of jurisdiction
and constitutional law. The goal of the academics in submitting this
&&ci C&.ae Brief in Support of a Stay is to place this case in its
broader legal and sociological framework and to show the serious
implications of this case, not only for the parties, but also for
adoptive and biological parents, children, and the security of
adoptions.
ully submitted,
11Aaron C.F. Finkbiner, III(Counsel of Record)Nancy J. BregsteinPaul D. SnitzerDechert Price and Rhoads4000 Bell Atlantic Tower1717 Arch StreetPhiladelphia, PA 19103(215) 994-4000
Counsel for Concerned Academicsas Amici Curiae
July 21, 1993
IN THE
SUPREME COURT OF THE UNITED STATES
October Term 1993
No. A-64
JESSICA DeBOER (a/k/a Baby Girl Clausen)by her next friend, Peter Darrow,
Petitioner,
V.
ROBERTA and JAN DeBOER,Respondents,
and
CARA and DANIEL SCHMIDT,Respondents.
BRIEF OF CONCERNED ACADEMICS ASAMICI CURIAE IN SUPPORT OF APPLICATION
FOR STAY FILED ON BEHALF OF PETITIONER JESSICA DeBOER
Amici Curiae Joan Heifetz HollingerConcerned Academics University of California
. (Boalt Hall)Elizabeth BartholetKatharine T. BartlettDavid L. ChambersSamuel EstreicherFrank F. Furstenberg, Jr.Joseph GoldsteinSonja GoldsteinDavid J. HerringJoan Heifetz HollingerMartha L. MinowRobert H. MnookinAnthony RostainLinda J. Silberman
Barbara Bennett WoodhouseUniversity of Pennsylvania
Aaron C.F. Finkbiner, III(Counsel of Record)Nancy J. BregsteinPaul D. SnitzerDechert Price & Rhoads4000 Bell Atlantic Tower1717 Arch StreetPhiladelphia, PA 19103-2793(215) 994-2000
Jane M. SpinakJoan Gubin TolchinLaurence H. TribeBarbara Bennett Woodhouse
Counsel for Concerned Academicsas Amici Curiae
July 21, 1993
TABLE OF CONTENTSPaqe
TABLE OF AUTHORITIES l l l l l l l l l l l l l l l l l l l l
INTERESTS
ARGUMENT
I 0
II 0
OFAMICI CURIAE l l l l l l l l l l l l l l l l l l
DENIAL OF A STAY WILL INFLICT IRREPARABLEDEVELOPMENTAL HARM ON PETITIONER JESSICA DeBOER. .
THE JURISDICTIONAL AND FULL FAITH AND CREDITISSUES ARE OF CRITICAL IMPORTANCE TO ADOPTED ANDADOPTABLE CHILDREN AND THEIR BIOLOGICAL ANDADOPTIVE FAMILIES l l l l l l l l l l l l l l l l l
A 0 Conflicting Interpretations and UncertaintiesAbout the Application of the PKPA toAdoptions Threaten the Security of Adoptionas an Alternative for Children in Need ofFamilies . . . . . . . . l . . . . . . . . . .
B l The Expansive Interpretation Given to Rightsof Putative Fathers by the Iowa SupremeCourt, Which the Michigan Supreme CourtConsidered Itself Compelled by the PKPA toEnforce, Threatens the Security of Adoptionas an Alternative for Children in Need ofFamilies . . . . . l l . . . . . l l . l l . l
III. DEPRIVING A CHILD OF HER FUNCTIONAL FAMILY TIES WITHOUTCONSIDERATION OF HARM TO THE CHILD INFRINGES THECHILD'S DUE PROCESS RIGHTS. l l l l l l l l l l l l l l
A l Children have Liberty Interests in Continuityof Relationships . . . . . . . . . . l . . . l
B 0 A Child Has an Independent Right toProtection from Harm that May Limit a FitParent's Custody Rights . . . . l . . . . . .
CONCLUSION l l l l l l l l l l l l l l l l l l l l l l o l l
APPENDIX A: List of Amici . . . . . . . . . . . . . . . .
APPENDIX B: Draft Proposed Uniform Adoption Act (May 1993)
1 0 Section 2-401 . . . . . . . . . . . . . . . . . .2 0 Article 3; Part 1 . . . . . . . . . . . . . . . .
iii
1
2
2
4
5
9
13
14
17
20
A-1
B-lB-7
TABLE OF AUTHORITIES
CASES
AdoWion of C.L.W., 467 So.2d 1106 (Fla. App. 1985) . 7
Adoption of Zachariah K 6 Cal. App.4th 1025, 8Cal. Rptr.2d 423 (1992) . . . . . . . . . . . . . 8
xn re AdoWion of K S. 399 Pa. Super.581 A.2d 659 (i99;) m &&&
29,528
Pa. 631, 598 A.2d 284 (1991) . . . . . . . . . . 7
Adoption of Kelsev S 1 Cal.4th82;Ip.2d 1216
816, 4 Cal.Rptr.2d 615, (1992) . . . . . l . 9, 10,
11, 19
In re baby Bov C., 581 A.2d 1141 (D.C. App. 1990) . l 10
Baby Girl K., 113 Wis.2d 429, 335 N.W.2d846 (1983) appeal dismissed, 465U.S. 1016e (1984) . . . . . . . . . . . . . . . . 10
Bellotti v. Baird, 443 U.S. 622 (1979) . . . l l . . 13
Certain Named and Unnamed Non-Citizen Children andTheir Parents v. Texas, 448 U.S. 1327 (1980) . . 2 I 3
DeShanev v. Winnebaao County, 489 U.S. 189 (1989) . . 19
Doe v. Roe, 543 So.2d 741 (Fla.) cert. denied,493 U.S. 964 (1989) . . l . .: . . . l l l l l 1 0
E.E.B. v D.A.A., 89 N.J.(1982), cert. denied,
595, 446 A.2d 871459 U.S. 1210
(1983) 7.. . . . . . . . ..o..o l . . . 8
Hammer v. Dasenhart, 247 U.S. 251 (1918) . . . . . . 3
In re Gault, 387 U.S. 1 (1967) . . . . . . . . . . . 13
Karcher v. Daaaett, 455 U.S. 1303, 1305 (1982) . . . . 2
Kremer v. Chemical Construction CorD., 456 U.S. 461(1982) l l . . . . . . . . . . ..o...... 12
Lehr v. Robertson, 463 U.S. 248 (1982) l . l l . l l 9, 11
Lemlev v. Barr, 176 WJa. 378, 343S.E.2d 101 (W.Va. 1986) . . . . . . . . . . . . . 8 8 12
q Macon, 472 U.S. 463 (1984) . . . . . . .
X., 559 N.Y.S.2d 855,76 N.Y.2d 387, 559 N.E.2d 418, cert.denied, 498 U.S. 984 (1990) . . . l . . . . . . .
. Nebraska, 262 U.S 390 (1923) . . . . . . . .
l l J& 491 U.S. 110 (1989) l . l l8
. RoQers, 457 U.S. 291 (1982) . . . . . . . .
oore v. Cltv of East Cleveland, 431 U.S. 494(1977)' 0 0 . . . 0 0 . . . . . . 0 . . 0 . . . .
palmore v. Sidotti, 466 U.S. 429 . . . . . . l . . l
parham v. J.R., 442 U.S. 584 (1979) . . . . . . . . .
l tts, 321 U.S. 158 (1944) . l l l
l alcott, 434 U.S. 246 (1978) . . . . . .
Peynolds v. International Amateur AthleticFederation, 112 S. Ct. 2512 (1992) . . . . . . .
Jn re Robert O., 590 N.Y.S.2d 37, 80 NmYm2d254, 604 N.E.2d 99 (1992) l . . l l . . l l l l l
Rostker v. Goldberg, 448 U.S. 1306 (1980) . . . . . .
Santoskv v. Kramer, 455 U.S. 745 (1982) . . . . . . .
Smith v. Oraanization of Foster Families,431 U.S. 816 (1977) . . . . 0 . 0 0 0 0 0 0 0 0 0
Sorentino v. Family & Children's Societyof Elizabeth, 74 N. J. 313, 378 A.2d 18 (1977) . .
Stanley v. Illinois, 405 U.S. 645 (1972) . . . . . .
Thomtxon v. Thompson, 484 U.S. 174 (1988) . . . . . .
Tipton v. Brown, 847 S.W.2d 496 (Tenn. 1993) . . . .
United States v. Orecron, 366 U.S. 643 (1960) . . . .
Watt v. Alaska, 451 U.S. 259 (1980) . . . l l l l l l
13
9 8 10
13
4 8 15
17
13, 14
14
13
3 8 18
15
3
10
2
18
15
19
14
5, 8, 12
7 8 14
13
9
- i i i -
STATUTES
28 U.S.C. S 1738A l l l l l . l l l l l l . . . . . 1, 6, 7, 8
28 U.S.C. S 1738 l . . . l . . l . l . . l . . . . . . 4
Cal. Civ. Code S 232 (Deering 1993) . . . . . . . . .
Michigan Comp. Laws Ann. S 710.21A (Supp. 1991) . . .
MISCELLANEOUS
Cong. Rec. 22,803 (August 25, 1980) . l . . . . l . .
Final Report of National Commission on Children,Beyond Rhetoric: A New American Aaenda formmilies 19 (1992) . . . . . . . . .
1 Joan H. Hollinger, et al.,Adoption Law and Practice (1992) . . . . . . . .
2 Joan H. Hollinger, et al.Adoption Law and Practice (1992) . . . . . . . .
J. Bowlby, Attachment (1969) . . . . . . . . . . . .
J. Bowlby, Separation (1976) . . . . . . . . . . . .
W. Damon, Social and Personality Development,fancy through Adolescence (1983) . . . . . . .
J. Goldstein, A. Freud, A. Solnit,Before the Best Interest of the Child (1979) . .
L. Singer, D. Brodzinsky, D. Starr, M. Steir, and E.Waters, Mother-Infant Attachment in AdoptiveFamilies, 56 Child Dev. 1543 (1985) . . . . . . .
12
12
5
7
10
11
16
16
16
19
16 8 17
ERESTS OF AMICI Cw
The amici curiae who submit this brief share a
professional concern for children and the law. Many of us devote
all of our professional efforts to research of legal and social
science issues bearing on the welfare of children and families.
Others are expert in issues of jurisdiction and constitutional
law. We submit this brief in support of the application for a
stay filed on behalf of Petitioner, Jessica DeBoer.'
The questions presented have profound significance for
children. The Michigan Supreme Court construed a federal
statute, the Parental Kidnapping Prevention Act, 28 U.S.C. S
1738A ("PKPA"), as requiring that preclusive effect be given to
an order of the Iowa Supreme Court in a custody proceeding in
which the child, petitioner Jessica DeBoer, was denied any
opportunity to present her claim of serious and irreparable harm
from the severing of her family attachments at a crucial stage in
her development. The Michigan and Iowa Supreme Courts
interpreted this Court's precedents as allowing Jessica's
interests in freedom from harm to be trumped, without
consideration of her welfare, by the rights of a biological
father who is a stranger to her. This ruling threatens the
security of adoptive placements and the liberty interests of
children in securing, protecting, and preserving stable family
1 . The amici curiae and their particular interests andprofessional positions are listed in the Appendix A attachedto this Brief. We intend to seek leave to file a Brief of&nici Curiae in Support of the Petition for Certiorari inthe belief that this case raises critical statutory andconstitutional issues affecting the welfare of children andfamilies.
relationships. The disregard of children's interests in
preserving actual relationships of nurture and care poses a
threat of irreparable harm to other adopted or adoptable
children, their biological and adoptive families, and countless
other children who are being raised by non-biological families.
I. DENIAL OF A STAY WILL INFLICT IRREPARABLE DEVELOPMENTAL HARMON PETITIONER JESSICA DeBOER.
The facts as set forth in the Iowa and Michigan Supreme
Court opinions, Jessica DeBoer's Application for Stay, .and the
Application for Stay of Roberta and Jan DeBoer satisfy the
standard for granting a stay pending consideration of a petition
for certiorari: (1) a "reasonable probability" that certiorari
will be granted, Rostker v. Goldberq, 448 U.S. 1306, 1308 (1980)
(Brennan, J.); (2) a "fair prospect *( that five Justices will
conclude the ruling below was in error, 448 U.S. at 1308; and
(3) irreparable harm to one or more applicants if a stay is not
granted, Certain Named and Unnamed Non-Citizen Children and Their
Parents v. Texas, 448 U.S. 1327, 1332 (1980) (irreparable harm to
children of not being able to attend school). If the Court
believes the legal questions are close ones, it should weigh the
equities and the balance of harms. Karcher v. Daaaett, 455 U.S.
1303, 1306 (1982) (Brennan, J.). On all these grounds, a stay is
warranted in this case.
-2.
This two and one-half year old child, unable to
comprehend the loss of the only parents she has ever known, faces
a devastating deprivation of "intangible values" of trust and
emotional security for which there are no substitutes and which
can never be restored. pSee evnolds v. Int 0ernational Amateur
Athletic Federation, 112 S. Ct. 2512 (1992) (Stevens, J.). This
Court has recognized that harm to children's mental and emotional
development involves injuries that cannot be reversed or
remedied. Named and Unnamed Children, 448 U.S. at 1332-33
(recognizing that developmental, emotional and behavioral damage
to children cannot be repaired by a future legal remedy). The
unique nature of the threatened harm to Jessica DeBoer outweighs
the detriment to the adult Respondents, as recognized by the
priority historically accorded to protecting vulnerable children.
Prince v. Massachusetts, 321 U.S. 158 (1944); Hammer v.
Daaenhart, 247 U.S. 251 (1918) (Holmes, J., dissenting).
Clarity is essential in questions concerning jurisdiction
and the finality of child custody and adoption decrees.
Conflicting judicial opinion about rights of putative fathers and
the interpretation of the PKPA impede the development of uniform
adoption laws, increase incentives for forum shopping, and thus
injure families' ability to plan, and lead to tragic cases such
as this one. Without clear authority from this Court, these
disputes between private parties and between States will
proliferate, at a high price to countless children and their
biological and adoptive families.
-3.
Failure to issue a stay would effectively preempt
consideration of the merits of this case because it would
severely and irrevocably damage Jessica's stability and emotional
security, shatter the carefully constructed identity she has
formed in her two and one-half years of life with the DeBoers,
and destroy her family as she knows it. These @%ntangible
values" are, of course, the central concerns raised by her
petition. When a small child's welfare is at stake, stability
and preservation of the status quo are of special importance.
The balance of equities required in any close case weighs
especially heavily in favor of Jessica. Jessica DeBoer is not a
misaddressed parcel which, once the error is discovered, should
be shipped to the correct recipient. She is, as many have said,
a blameless child who should not have to suffer such harsh
punishment for the mistakes of others. No matter how loving and
devoted to her welfare her birth parents may be, she will be
psychologically harmed, in some measure irreparably, by being
taken away from the only custodial environment she has known.
II 0 THE JURISDICTIONAL AND FULL FAITH AND CREDIT ISSUES AREOF CRITICAL IMPORTANCE TO ADOPTED AND ADOPTABLE CHILDRENAND THEIR BIOLOGICAL AND ADOPTIVE FAMILIES.
The Michigan Supreme Court refused to consider the harm
to Jessica, because it believed that any consideration of
Jessica's interests was barred by the PKPA. The Michigan Supreme
Court concluded that the PKPA compelled Michigan to give full
-4.
faith and credit to the Iowa judgment ordering Jessica's transfer
to Iowa. The decision raises serious questions about the proper
interpretation and application of the PKPA* and the Full Faith
and Credit Clause of the United States Constitution:
A 0 Conflicting Interpretations and Uncertainties Aboutthe Application of the PKPA to Adoptions Threaten theSecurity of Adoption as an Alternative for Children inpeed of Families.
The PKPA is an important statute designed to give
certainty and stability to children in the large class of cases
involving disputes between divorcing or never-married parents.
It is not clear, however, that Congress ever considered the issue
of adoption or its implications for the PKPA; adoption is not
even mentioned in the statute or its legislative history.3 The
statute was explicitly addressed to custody cases involving
children who lived with one or both of their parents before any
custody dispute arose. 4 However, because the PKPA refers to
2 l
3 l
4 l
The aim of the PKPA was Itto extend the requirements of theFull Faith and Credit Clause to custody determinations", andit is intended to have the same operative effect as the fullfaith and credit statute, 28 U.S.C. S 1738. See Thompson v.Thompson, 484 U.S. 174, 183 (1988).
See Reporters Comments to Art. 3, Part 1 of current draft ofProposed Uniform Adoption Act. APPO B7-10. The Reporter'sComments do not necessarily represent the views of theNational Conference of Commissioners on Uniform State Lawand are offered only to illustrate the difficulties posed tothe revision project, now in its fourth year, byuncertainties about the matters at issue in this case.
ll[O]ver a million children are affected by divorce orseparation each year" and Yens of thousands [of them] fallvictim to child snatching, the restraint or concealment of achild from one parent by the other parenLV' Cong. Rec.
-5.
"child custody determinations", ' it has been applied to adoption.
The misfit between the PKPA's words and the situations of newborn
adoptees has led to conflicting interpretations of the PKPA and
to uncertainty and instability affecting a relatively small but
extremely important class of cases to which the PKPA has been
applied -- those involving adoption of infants. The Reporter%
Comments to the current draft of the Proposed Uniform Adoption
Act of the National Conference of Commissioners on Uniform State
Laws illustrate that questions about the PKPA's proper
interpretation and application pose serious obstacles to the
creation of a rational, uniform scheme for adoptions.6
This case offers an opportunity for this Court to address
these recurring questions in a procedural posture and on a record
that sharply presents them. Contrary to the decision of the
Michigan Supreme Court majority, Iowa was not "unquestionably the
home state of the child?' Courts as well as academics have
22,803 (August 25, 1980) (Statement of Sen. Wallopintroducing bill). See Thompson v. Thompson, 484 U.S. 174,180-81 (11988) (noting Congress' intent was to deal withsituations in which one parent snatches a child from theother parent during a custody dispute).
See 28 U.S.C. S 1738A(a) (“any child custodydetermination**); S 1738A(b)(3) (“'custody determination'means a judgment, decree, or other order of a courtproviding for the custody or visitation of a child, andincludes permanent and temporary orders, and initial ordersand modificationsl!).
See Proposed Uniform Adoption Act, Comment to Article 3,Part 1. App. B7-10.
Slip Op at 32.
-60
struggled to fit the definition of "home state" in 28 U.S.C. S
1738A (b) (4), defined as "the State in which the child lived from
birth, *' to cases involving newborns like Jessica who have never,
in fact, lived in the state of their birth. The terms @'a parent,
or person acting as a parent, g( leave serious gaps when applied to
adoptions involving guardianships, adoption agencies, and
proceedings that span several states, i.e., the state of birth,
the birth parents' home states, the adoptive parents' home state,
and the state where the agency is located.'
Emphasis on the home state makes sense in the typical
custody case, where the PKPA protects children's stability by
preventing either parent from forum shopping by kidnapping or
wrongfully detaining a visiting child away from her "home state."
However, in the distinctive context of interstate adoption, the
very objective is to facilitate a permanent, stable gghomegg for
the child in a different state. The Michigan Supreme Court's
reading of the statute would create a six month hiatus during
8 0 See Tipton v. Brown,"home state"
847 S.W.2d 496 (Tenn. 1993) (construingin custody and adoption cases arising between
residents of Tennessee and Hawaii and residents of Tennesseeand Georgia); Adoption of C.L.W., 467 So.2d 1106 (Fla. App.1985) (Florida court concludes Pennsylvania, where birthmother resides, cannot be "home state" of infant placed atbirth in Florida nor is it "significant connectiongg state);In re Adoption of K.S., 399 Pa. Super. 29, 581 A.2d 659(1990) (finding that Delaware was the "home state" of aninfant born in Pennsylvania to Delaware mother who placedchild with Pennsylvania agency which then placed child withDelaware pre-adoptive parents; court transferred case toDelaware to adjudicate custody and visitation issuesinvolving father, mother and pre-adoptive parents, afterbiological father succeeded in blocking adoption).
-7.
which the actual and intended home state of a newborn, who had
never lived with her biological parents and had travelled to her
new home with their consent and with a court order granting
custody during an adoption, would be precluded from entering an
adoption decree that would be binding under the PKPA.' This is
but one illustration of the grave uncertainties faced by courts
and legislatures attempting to interpret and work within the
confines of the PKPA.
In this case, the Michigan Supreme Court has expressly
rejected the rationale of the New Jersey Supreme Court% decision
in F.&B. v. D.A.A., 89 N.J. 595, 446 A.2d 871 (1982), cert.
denied, 459 U.S. 1210 (1983), which permitted modification of a
sister state's judgment regarding custody when that state had
declined to consider arguments on the child's interests, thus
sharpening the conflicts among states." Only this Court has the
power to resolve these "truly intractable jurisdictional
9 0 The DeBoers, in fact, had the approval of the Administratorof the Interstate Compact on Placement of Children (AICPC)because they had a judicial order of termination from Iowa.Under current practices, biological parents typicallyexecute a consent in the state where they reside and theadoptive parents then file the consents with their petitionto adopt in their home state. See Adoption of Zachariah K.,6 Cal. App.4th 1025, 8 Cal. Rptzd 423 (1992) (holding thata newborn brought into adoptive parents' home state shortlyafter birth has no "home state" and thus the parents' homestate has jurisdiction under the PKPA “significantconnection@@ section, 1738A(c)(2)(h)(i)).
10 0 Slip. Op. at 24. See also Lemlev v. Barr, 176 W.Va. 378,343 S.E.2d 101 (W.Va. 1986) (applying similar analysis toanalogous Uniform Child Custody Jurisdiction Actprovisions).
-80
deadlocks [under the PKPA],@‘ Thomson v. ThomDson, 484 U.S. 174,
187 (1988) (holding PKPA does not create cause of action in
federal courts), and to resolve how and whether the PKPA applies
to the adoption, termination of parental rights, and other
purported Vustody determinations" at issue in this case. Iiwz
v. uaskq, 451 U.S. 259, 266 (1980) .(citing Church of Holve 0e, 143 U.S. 457, 459 (1892)).
B 0 The Expansive Interpretation Given to Rights ofPutative Fathers by the Iowa Supreme Court, Which theMichigan Supreme Court Considered Itself Compelled bythe PKPA to Enforce, Threatens the Security ofAdoption as an Alternative for Children in Need ofFamilies.
Jessica's dilemma is not, as the Iowa Supreme Court
supposed, nunusua18t" but rather symptomatic of a growing threat
posed by uncertainty after JLehr v. Robertson, 463 U.S. 248
(1982) I about the status of "thwarted" unwed putative fathers in
adoption proceedings.'* The chaotic state of the law compromises
the security of adoption as a mechanism for providing permanent
homes for children. Lacking clear guidance on the application of
11 l The Iowa opinion begins "This case is, we observethankfully, an unusual one.'1
12 0 The drafters of the Proposed Uniform Adoption Act havestruggled with the constitutional rights of so-called"thwarted" fathers who did not know of the child's birth orwere prevented from contacting the child. See S 2-401Consent; S 3-704 Grounds for terminating relationship (App.Bl-5; B17-26); patter of Racxuel Marie X., 559 N.Y.S.2d 855,76 N.Y.2d 387, 401, 559 N.E.2d 418 (1990) (identifying unwedfather's rights in new born as "open question@'), cert.denied, 498 U.S. 984 (1990); AdoDtion of Kelsev SxCal.4th 816, 823 P.2d 1216, 1223, 4 Cal. Rptr.2d 615 (1992)(same).
- 9 -
this Court% rulings on putative father's rights to newborn
adoptions, many states have struggled with the issue, some
expanding and some narrowing unwed father's substantive and
procedural rights? Substantial conflict exists about whether
it is the father's developed relationship or his nopportunity
interest" in developing such a relationship that is
constitutionally protected. Courts have differed as well on
whether the promptness with which he grasps his opportunity is
measured by actual notice of the child's existence or according
to the child's developing ties to adoptive parents. Most
important for this case is the substantial conflict about whether
the biological father's grasping of his opportunity enables him
13 . See Adoption of Kelsev S., 1 Cal.4th 816, 4 Cal. Rptr.2d615, 823 P.2d 1216 (1992) (declaring that Uniform ParentageAct provision giving rights to withhold consent to**presumed ** fathers (husbands or fathers who have lived withand supported mother and child) and not to unwed fatherswho, once aware of child's birth, demonstrate commitment,violates equal protection clause); Matter of Racmel Mariel t 559 N.Y.S.2d 855, 76 N.Y.2d 38 (1990), as qualified byXzn re Robert O., 590 N.Y.S.2d 37, 80 N.Y.2d 254, 604 N.E.2d99 (1992) (father who has never lived with or supportedmother and child may gain consent rights if he comes forward**promptly ** but promptness is measured in terms of thechild's life, not onset of father's awareness); In re babyBOY C., 581 A.2d 1141 (D.C. App. 1990) (unwed father who wasnot notified of adoption retains right to object unlessadoptive parents show by clear and convincing evidence thatit is in best interest of child to be adopted); Baby GirlJL, 113 Wis.2d 429, 335 N.W.2d 846 (1983) (father'sincarceration since before child's birth does not excusefailure to support and his rights may be terminated) cert.denies, 493 U.S. 964 (1984); Poe v. Roe, 543 So.2d 74(Fla.1989) (finding pre-birth abandonment from failure to supportpregnant mother) cert. denied, 493 U.S. 964 (1989); see also1 Joan H. Hollingcet al., Adoption Law and Practice Ch. 2(1992 & supp.).
- 10 -
to claim custody without any judicial consideration or
examination of the child's interests. The difficulty of
identifying absent fathers, whose only connection to mother and
child may be a single, casual episode of unprotected sex,
compounds the uncertainties. The interests of birth mothersIb,
adoptive parents, adoptive children, and state agencies entrusted
with children9 care are all impaired by overbroad
interpretations of biological fathers* rights. The
by the Iowa Supreme Court is extreme in recognizing
rule applied
the
**opportunity interest** of an unwed father without acknowledging
the consequences or harm to the child.
The inchoate rights of unknown putative fathers to veto
adoptions have long been on a collision course with protection of
birth mothers* rights to plan for their children's welfare and
with the stability and continuity of children% placements.
Serious due process and full faith and credit issues are raised
by the PKPA as interpreted by the Michigan Supreme Court whenever
the birth state, like Iowa, gives a sweeping construction to
putative fathers* rights. The putative father who has had no
contact with his child may then veto an adoption and assume
custody without any judicial recognition of the child's own
14 l Usually, as in this case, the birth mother and father arenot a family unit at the time he comes forward to oppose theadoption, often thwarting her plans for the child'splacement and precipitating a custody battle. See, ea.,&ehr v. Robertson, 463 U.S. 248 (1982); Adoption of KelsevS4I 1 Cal.4th 816, 4 Cal. Rptr.2d 615, 823 P.2d 1216 (Cal.1992); 2 Joan H. Hollinger et al., Ch.2 (1992 61 Supp.).m-
- 11 -
interests, and the PKPA recrubes a state where a child has lived
since birth to enforce this judgment. While it is possible that
the drafters of the PKPA contemplated that a @*best interest** test
would not apply in every custody dispute,'* they could not have
intended to require enforcement of a judgment of another state
where the child's interests were not afforded any opportunity to
be heard. The Full Faith and Credit Clause does not compel
states to enforce sister state judgments that fail to accord
minimal due process. See Kremer v. Chemical Construction Corp.,
456 U.S. 461, 482 (1982). Congress' principal aim was to extend
the requirements of the Full Faith and Credit Clause to Custody
determinations. ThomPson v. ThomDson, 484 U.S. 174, 183 (1988).
It is axiomatic in custody law that "the welfare of the child is
the *polar star*. . .,** &emlev V. Barr, 176 W.Va. 378, 343
S.E.2d 101 (1986), and consideration of the child's interest is
the sine oua non of a custody determination. The Michigan Court
erred in concluding that the PKPA compelled it to enforce the
Iowa courts1 extreme interpretation of Mr. Schmidt's
15 a In the **normal ** divorce setting, the best interests testpits one parent against another without any preference orpresumption for either one, but when parents vie with thirdparties, the law usually give a preference to parents thatcan be overcome by clear and convincing evidence either thatthe child will be harmed by staying with the parent or thatthe child's best interests requires keeping the child with athird party.1993) 0
See, e.g., Cal. Civ. Code S 232 (DeeringIn the-&text of adoption, the rule is that an
adoption will not be granted unless it is in the bestinterests of the child. If conflicts arise between therights of the parties, the rights of the child "shall beparam0unt.** Michigan Comp.1991) ; - -See also Hollinaer,
Laws Ann. S 710.2lA (Supp.Ch. 1 6t App. 1-A (1992 Supp.).
- 12 -
constitutional rights, one which ignores children's interests as
well as birth mothers* autonomy and the harm inflicted by Iowa*s
failure to provide expedited procedures.'6 .
The conflicts over the application of the PKPA to
adoption cases, and the chaotic state of adoption law as lower
courts struggle to interpret this Court's cases on rights of
unwed fathers, provide compelling reasons for this Court to grant
certiorari and establish that there is a @*fair prospect" that
five Justices will conclude that the Michigan Court was in error.
United States v. Oregon, 366 U.S. 643, 645 (1960); flawland v.
Pacon, 472 U.S. 463, 465 (1984).
III. DEPRIVING A CHILD OF HER FUNCTIONAL FAMILY TIES WITHOUTCONSIDERATION OF HARM TO THE CHILD INFRINGES THE CHILD'S
PROCESS RIGHTS 0
This Court has continuously reaffirmed that the United
States Constitution and Bill of Rights protect children as well
as adults. In particular, children have both procedural and
substantive due process rights, most significantly protected
where the state threatens to interfere with their liberty or,
their family ties.17 While acknowledging the reality of severe
16 0 Slip Op. at 24; id. at 25-26.
17 0 Never v. Nebraska, 262 U.S. 390 (1923) (child's right toguidance from parents); In re Gaul& 387 U.S. 1 (1967)(rights to counsel and against self-incrimination injuvenile proceeding); Moore v. Citv of East Cleveland, 431U.S. 494 (1977) (protection of relationships with extendedfamily members); Bellotti v. Baird, 443 U.S. 622 (1979)(substantive due process rights to privacy); Parham v. J.R.,442 U.S. 584 (1979) (procedural due process rights incommitment proceeding).
- 13 -
harm to this child, the Michigan Supreme Court denied that a
child has an independent liberty interest in continuity of
relationships with those whom the child considers to be her
family. The court also refused her custodians and next friend
standing to assert that she will be harmed by rupture of her
attachments to caregivers. The Michigan Supreme Court erred in
accepting the Iowa holding that, as long as the biological parentis not unfit, a child has no due process liberty interest in
family life or in protection from harm independent of her
biological parent's interests.18
A 0 Children have Liberty Interests in Continuity ofJ3elationshiBs.
This Court's decisions establish that a child's
continuity in her household is protected from coercive
intervention and from state transfers of custody even though her
family departs from the traditional model.19 The question of
whether children have a constitutionally protected liberty
interest in attachments to **familyn members to whom they are not
18 0 Slip Op. at 36-37.
19 0 See palmore V. Sidotti, 466 U.S. 429 (1984) (child may notberemoved from home because of prejudice against stepparentof a different race); Stanley v. Illinois, 405 U.S. 645(1972) (protecting illegitimate childrents relationship withthe unmarried father who had raised them); flichael H. v.Gerald D I 491 U.S. 110 (1989) (protecting child'srelationship with father who had raised her despite lack ofbiological connection); Moore v. Citv of East Cleveland, 431U.S. 494 (1977) (striking down city ordinance that wouldhave separated children from extended family members).
- 14 -
* ebiologically related was left open in Smith v, Oraanuatlon of
es *' The Court acknowledged the deep attachments0
children form with their caregivers but found that foster
childrents interests in avoiding harm from abrupt severing of the
foster family ties were adequately protected by giving the foster
parents standing to request an independent review prior to
removal. 431 U.S. at 847. The child's interests are, if
anything, far stronger in an adoption, since the relationship is
entered into freely and without thought of profit, and is
intended by biological parents, adoptive parents, and the state
to create a permanent, secure parent-child bond. The Michigan
and Iowa Supreme Courts, however, denied standing to both the
child and the adoptive parents. The statement in Smith, that due
process would be offended by the break-up of a natural family
solely for the best interest of the child, does not apply to this
case. Jessica was never part of a biological family unit -- this
child *s "unitary family ** has always been the DeBoers. Cf.
Michael H. V. Gerald D., 491 U.S. 110, 127-29 (1989) (the unitary
family is not necessarily based on biological ties). In Ouilloin
v. Walcott, 434 U.S. 246, 255 (1978), the Court allowed a
stepparent adoption over the objections of the unwed father as in
the best interest of the child, remarking that **the result of the
20 0 431 U.S. 816, 847 (1977) (**[foster children's] claim to aconstitutionally protected liberty interest raises complexand novel questions [but) it is unnecessary for us toresolve those questions definitively in this case**),
- 15 -
adoption in this case is to give full recognition to a family
unit already in existence.**
The Michigan and Iowa courts not only refused to address
Jessica's interest in the Pest custodial placement, they refused
to consider her claim of serious and irreparable harm, citing
**intrinsic human rights** as conferring paramount custody rights
on the **natural fami1y.***' Children's ties to their functional
families, however, also follow **natural law.@* Experts agree that
children naturally form strong and early bonds of **attachment*~ to
their primary caretakers. Most observers agree that continuity
of primary attachments is essential to the child's healthy
development.** Children in adopted families form equally strong
attachments to their parents? Young children, when separated
from their families for even brief periods of time, suffer from
withdrawal and depression, loss of appetite, prolonged periods of
crying, sleep loss, and behavioral problems.24 *Those who work
with and study children in mental health, hospital, and other
settings know that the child's interest in maintaining ties with
21 0
22 0
23 0
24 0
Slip Op. at 2 (quoting from Smith v. Organization of FosterFamilies, 431 U.S. 816, 845-846 (1977)).
J. Bowlby, Attachment (1969); W. Damon, Social andPersonality Development. Infancy through Adolescence 27-52(1983).
See L. Singer, D. Brodzinsky, D. Starr, M. Steir, and E.Waters, pother-Infant Attachment in AdoDtive Families, 56Child Dev. 1543 (1985).
J. Bowlby, Separation (1976); W. Damon, Social andPersonality DeveloDment 41-48 (1983).
- 16 -
her functional parents is more than a mere theory or abstraction.
The harm suffered by a child from abrupt removal from her primary
attachment figures at age two and one-half is palpable and
physical and poses a serious risk of permanent developmental
damage? The benefit to the child of the opportunity to form
and maintain these secure, early primary attachments is equally
compelling, because these attachments affect the child's ability
to form trusting relationships throughout her life.
Although this Court has given repeated attention to the
rights of unwed fathers, it has never addressed the adoption of
newborns, the scope of putative fathers* interests in this
context, or the balance between a child's interest in securing
and protecting her crucial primary attachments and the individual
parent's right to custody. **Because the judgment of the
[Michigan Court] involved constitutional issues of potentially.broad significance," pills v. Roqers, 457 U.S. 291, 298 (1982),
we urge the Court to stay the Michigan Court*s mandate pending
consideration of the Petitions and a grant of certiorari.
B 0
The
Jessica had
A Child Has an Independent Right to Protectionfrom Harm that May Limit a Fit Parent's Custody0lahts l
Michigan Supreme Court also erred in concluding that
no interest independent of her biological parents'
25 a W. Damon, at 43-48 (discussing landmark studies by MichaelRutter and Dorothy Tizard, among others, indicating acutedistress and severe and lasting consequences from separationof children from caregivers).
- 17 -
rights and that mamutual rights of the parent and child come into
conflict only when there is a showing of unfitness.Wa In
SantOSlw V. Kramer, 455 U.S. 745 (1982), four members of the
Court, discussing a termination of rights hearing for parents of
children who were in foster care, recognized that:
The child has an interest in the outcome of thefactfinding hearing independent of that of theparent. To be sure, *the child and his parentsshare a vital interest in preventing srroneoustermination of their natural relationship.* Butthe child's interest in a continuation of thefamily unit exists only to the extent that such acontinuation would not be harmful to him. Anerror in the factfindina hearing that results ina failure to terminate a parent-childrelationship which rightfully should beterminated may well detrimentally affect thechild.27
Acknowledging the child's interest in being protected from harm
is the central issue in this case, although here the harm comes
from severing her relationship with her long-term care givers.
Jessica does not seek termination of her biological parents*
rights. She seeks only a custody determination in which her
claims of serious harm are heard. State court decisions
construing biological fathers' rights recognize that the child's
right to be protected from harm requires that the issue of
custody be determined separately from the biological parent's
26 a Slip Op. at 36-37.
27 a 455 U.S. 745, 788 (1982) (Rehnguist, J., dissenting withBurger, C.J., White, J., O*Connor, J.) (citations omitted)Cf. Prince v. Massachusetts, 321 U.S. 158 (1944) (state mayintervene in protected religious practice if necessary tochildren's welfare).
- 18 -
rights if the child is placed at risk by disruption of a
long-term adoptive placement? To treat the biological tie as
automatically conferring a right of possession without regard to
harm to the child is to equate the child to a @*bale of hay" or an
article of personal property. As Judge Levin*s dissent so
clearly stated,
There is a third party, the child. Shetoo is a person with a liberty interestunder the constitution. . . . If thedanger confronting the child werephysical injury, no one would questionher right to invoke judicial process toprotect herself against such injury.There is little difference, when viewedfrom the child's frame of referencebetween a physical assault and apsychological assault. Slip Op. at 51(Levin, J, dissenting).
In PeShanev v. Winnebago County, 489 U.S. 189 (1989), the Court
distinguished between harm caused by a parent's abuse and harm
caused by State intervention. Where the harm flows, as it does
here, from the court*s own actions, a child has an affirmative
right to protection from harm.
28 0 Adoption of Kelsev S., 1 Ca1.4th at 851, 4 Cal. Rptr.2d at637, 823 P.2d at 1238 (**if petitioner has a right towithhold his consent (and chooses to prevent the adoption),there will remain the question of the child's custody**); seealso Sorentino v. Family 6r Children's Society of Elizabeth,74 N.J. 313, 378 A.2d 18 (1977) (even after birth parentshad their rights vindicated in a contested adoption,circumstances may justify holding a hearing on whethertransferring custodyharm to the child.**);
**wi11 raise the possibility of seriousJ. Goldstein, A. Freud, A. Solnit,
Before the Best Interest of the Child (1979) (state shouldnot intervene in an intact family, but long-term disruptionof custody requires consideration of child's needs).
- 19 -
l
Neither the PKPA nor the Constitution require Michigan to
enforce or bar it from modifying a custody judgment that denied
Jessica minimal due process. The Iowa courts erred in construing
her biological father's rights as obviating Jessica's own rights
to be heard on the issue of serious harm, and the Michigan
Supreme Court erred in construing the PKPA as mandating
enforcement of the Iowa judgment and denying standing to her and
her custodians to protect her rights. Whether as a matter of
statutory construction or of constitutional law, the Michigan
Supreme Court's decision was plainly wrong.
For the reasons recited above, we urge the court to grant
Jessica DeBoer*s Application for a Stay of the Michigan Supreme
Court9 Mandate and Judgment.
Respectfully submitted,
Joan Heifetz HollingerUniversity of California(Boalt Hall)
Barbara Bennett WoodhouseUniversity of Pennsylvania
Aaron C.F. Finkbiner, III(Counsel of Record)Nancy J. BregsteinPaul D. SnitzerDechert Price 61 Rhoads4000 Bell Atlantic Tower1717 Arch StreetPhiladelphia, PA 19103-2793
Counsel for Concerned Academicsas Amici Curiae
July 21, 1993
- 20 -
APPENDIX A
APPENDIX A
plizabeth Bartholet is a Professor of Law at Harvard Law School,where she teaches Family Law and Adoption, Reproduction and the-Law. She is author of Family Bonds: Adoption and the Politics ofParentinq (1993), and various articles dealing with adoption andreproductive technology. She has served as a member of the U.S.State Department Advisory Committee on the Hague Convention onIntercountry Adoption, and is an honorary member of the AmericanAcademy of Adoption Attorneys.
Katharine T Bartlett is Professor of Law at Duke UniversitySchool of L;w.
IShe teaches courses in family law and child
advocacy and has written extensively on child custody matters.She began the Child Advocacy Clinic at Duke Law School in 1986.She is co-author of a leading family law casebook. She is amember of the Board of Directors of the Society of American LawTeachers and of Urban Ministries of Durham, and is on the MembersConsultative Group of the American Law Institute Project on thePrinciples of Family Dissolution.
David L. Chambers is the Wade H. McCree Professor of Law at theUniversity of Michigan Law School. He teaches and writes aboutfamily law and studies the enforcement of child support, childcustody disputes between divorcing parents, and the legal andsocial position of stepparents. He is a past-President of theSociety of American Law Teachers, a member of the NationalAcademy of Science's National Research Council Committee on Child
' Development Research and Public Policy, and an advisor to theAmerican Law Institute Project on the Principles of FamilyDissolution.
Samuel Estreicher is a Professor of Law at New York UniversityLaw School. He teaches and writes in the areas of ConstitutionalLaw, Civil Procedure, Administrative Law and Labor and EmploymentLaw, and has co-authored a study of the Supreme Court%jurisdiction. He serves as the Director of the Institute forJudicial Administration.
Frank F. Furstenbera, Jr. is Professor of Sociology and ResearchAssociate in the Population Studies Center at the University ofPennsylvania. He served as Consultant to the National Commissionon Children for its 1992 final report. He has also done studiesand published articles on divorce, remarriage, stepparenting andsingle parent families. Much of Professor Furstenberg's currentresearch concerns the interplay between social change in thefamily and public policies. His most recent book When Parents
A-l
Part, with Andrew Cherlin, deals with divorce, children, andpublic policy.
Joseph Goldstein is Sterling Professor Emeritus and RuttenbergProfessional Lecturer in Law at Yale Law School and Professor atthe Yale Child Study Center. He is co-author, with Anna Freudand Albert J. Solnit, M.D., of Bevond the Best Interests of theChild, Before the Best Interests of the Child, and, also withSonja Goldstein, of In the Best Interests of the Child. His mostrecent book is The Intelliaible Constitution.
Sonia Goldstein is a practicing attorney and also a lecturer atthe Yale Child Study Center. With Albert J. Solnit, M.D., she isco-author of Divorce and Your Child, and with Anna Freud andJoseph Goldstein and Albert J. Solnit, of In The Best Interestsof the Child.
David J. Herrinq is Assistant Professor of Law at the Universityof Pittsburgh School of Law, and directs the School's Child Abuseand Neglect Law Clinic. His writing and research has emphasizedthe relationship between children, foster parents, adoptiveparents and state child welfare agencies in connection with statestatutes allowing for the involuntary termination of parentalrights. All of his writings have emphasized the need for timelypermanency planning for children. He is on the Advisory Board ofthe Allegheny County Court Appointed Special Advocates forChildren program and is a member of the Pennsylvania AttorneyGeneral's Task Force on Child Abuse and Neglect.
Joan Heifetz Hollinaer is a Professor of Law, Visiting Professorat the University of California, Berkeley (Boalt Hall) in 199301994 0 She is the Reporter for the proposed Uniform Adoption Actof the National Conference of Commissioners on Uniform State Laws(NCCUSL), and is the Editor and principal author of Adoption Lawand Practice 2 Vols. (Matthew Bender 1988, Supps. 1989-93) Shealso serves on the Advisory Group on Intercountry Adoption to theU.S. State Department and is an Honorary Member of the AmericanAcademy of Adoption Attorneys.
Martha L Minow is Professor of Law at Harvard Law School whereher courses include Family Law and Children and the Law. Herscholarship has addressed the rights and needs of children andpersons with disabilities and the history of family law. Sheserves on the Boards for the W. T. Grant Foundation, which fundsresearch and programs aimed to help children's health and well-being, the Family Center, a community-based mental health center,and the David L. Bazelon Center for Mental Health Law, a nationaladvocacy and service organization. She is also trustee emeritus
A-2
investigator of the West Philadelphia Collaborative Program forChild Health, a multi-disciplinary, multi-institutional effort toimprove .health services for urban children.
aurence H. Tribe is the Tyler Professor of Constitutional Law atHarvard Law School. He has published a leading treatise on theAmerican Constitution and approximately ninety-five other booksand articles. His specialty is constitutional law, and he haswritten widely on subjects relating to the rights of children andparents. He is frequently asked to testify as an expert onconstitutional matters in the United States House and Senate andhas served as an adviser to the U.S. Department of Justice andthe White House. He is a Fellow of the American Academy of Artsand Sciences and the recipient of numerous honorary degrees.
Linda J. Silbermaq is Professor of Law at New York University andAssociate Director of the Institute of Judicial Administration.She teaches Civil Procedure, Conflict of Laws, InternationalLitigation and Family Law. She has written and lecturedextensively on issues of jurisdiction and recognition ofjudgments in civil litigation generally and with respect tofamily law and custody proceedings more specifically. AsProfessor in Residence at the Department of Justice (CivilAppeals), in 1986-87 she litigated several cases involving theParental Kidnapping Prevention Act. She was a member of the U.S.State Department Advisory Group on the Hague Conference at theSecond Special Commission meeting to review the operation of thatHague Abduction Convention.
Barbara Bennett Woodhouse, is Assistant Professor of Law at theUniversity of Pennsylvania Law School and teaches Family Law,Child Protective Law, and Conflict of Laws. Her writing andresearch explore the relation between child, parent and state.She is on the Advisory Boards of the Philadelphia Children%Network and the Constitutional Education Foundation, and the St.Mary% Family Respite Center is a Director of the AmericanSociety of Comparative Law. She serves on the ExecutiveCommittee of the American Association of Law Schools, Family LawSection.
A-4
of the Judge Baker Children's Center and adviser to the HarvardLaw School Children's and Family Rights Project.
Pobert H. Mnoom formerly the Adelbert H. Sweet Professor ofLaw at Stanford University, recently joined the Harvard Lawfaculty. He teaches courses in children and the Law, Family Law,and Alternate Dispute Resolution. He is the author of Jn theFnterest of Children and of the leading case book Child. Parentand State. He is a kember of the-National Academy of Sciencesand The Commission on Child Development, Research and PublicPolicy. He has written extensively on children and families,most recently co-authoring pividina the Child, a longitudinalstudy of divorce and in the role of conflict in familyrestructuring.
Jane M Sginak is Clinical Professor of Law and Director of theFamily'Advocacy Clinic at Columbia University School of Law. Sheteaches Children and the Law as well as a clinical program whichrepresents parents in foster care and child welfare proceedings.She is a member of the New York State Task Force on PermanencyPlanning for Foster Children, a member of the Board of Directorsof Court Appointed Special Advocates ("CASA") of New York City,an organization which monitors cases in Family Court, and is onthe Editorial Advisory Board of The International Journal ofChildren's Rights. She has trained hundreds of lawyers andjudges on permanency planning for children for the ABA Center onChildren and the Law and is the author of the Permanency PlanninqJudicial Benchbook.
Joan Gubin Tolchin is Clinical Assistant Professor in Psychiatryat Cornell University Medical College. She practices and teacheschild and adolescent psychiatry. Dr. Tolchin has workedextensively with children who have experienced separation andloss and has taught and supervised medical students, residents,and child fellows in their work with children and adolescents.She was elected to Fellowship status at the American Academy ofChild and Adolescent Psychiatry in 1983. Dr. Tolchin is a memberof the American Psychiatric Association, the American Academy ofChild and Adolescent Psychiatry and the New York Council on Childand Adolescent Psychiatry.
Anthonv Rostain is Assistant Professor of Psychiatry andPediatrics at the University of Pennsylvania School of Medicine.Since 1991, he has served as Director of Medical StudentEducation in Psychiatry there. He is also attending physician atChildren's Hospital of Philadelphia and the Philadelphia ChildGuidance Center. He served as Director of the PediatricConsultation-Liaison Psychiatry Service at the Children'sHospital of Philadelphia from 1988 to 1991. He is the principal
A-3
1
2
3 through (iv) has occu~cd or that the minor has been tmnsfemd *to an individual
5 Department shall refer the matter to the (appropriate] entity or shall commence
6 an action or proceeding to remove the minor from the individual to whom the
7 minor has been transferred.
8
91011121301315 .161718
(b) If the Devment receives a report required under Section 2-302
and the report indicates that none of the dispositions listed in Section 2-302(3)(i)
described in Section 2-302(3)(v) who has not filed a petition to adopt, the
Comment
The Act authorizes the Department (Section l-109). or an independentcontractor approved bv the Department. to draft written information for birthparents who are consihering placing their children for adoption. The booMetwill explain in simple language what an adoptive placement is, the differencesbetwxn direct and agency placement. the procedures for and the consequencesof a formal consent or rriinquishment. the availability of adoption counselors,.lawyers. and others expcrlenced in adoption practice, and so on. Thisinformation should be widely disseminated and be generally available fromagencies. lawws, social workers. and other professionals who assist inadoptions. askelI as iwm hospitals and birthing centers.
19 SECIIOS 2-401. I’EKSOSS WHOSE COSEXT TO ADOPTIOK IS
20 REQUIRED.
67
B-1
. 1 . . (3) the intended parents of the minor in t State that has cllilct4d
2
3
4
5
6
7
8
9
10
A)~mat,ivc A of the Uniform Status of Childrcn of Assisted Conception Au.
(b) Unless oonscnt is not required under Section 2-402, in a @cement
by un agency, 8 @ion to adopt a minor may be granted only if consent to the
adoption has been executed by:
(1) the agency that placed the minor for adoption: and
(2) an individual described in subsection (a) who has not
relinquished the minor pursuant to Article 2, Pan 5.
(c) Unless the court dispenses with the minor’s consent. a petition to
adopt a minor of 12 or more years of age may be granted only if. in addition to
11 any consent required bv subsections la) and (b). the minor has executed a.
12 consent to the adoption.
13* Comment1415161718
. 1920
As a general rule. both parents of a minor child mus! consent to theirchild’s adoption. Nonetheless. although consent is nearly alwavs required froma birth mother (except for circumstances stated in Section 24Ok consent is notrequired from -me o f the men who mav be the child’s father. The Act followsrecent constitutional decisions that rej& the traditional tulc that a man notmar~&I 10 the mother when she gives birth ha no status in an adoptionprc&ingl The Act dwnguishL’s thcl men who manikst “pwnting hchwior.”and have therefore e;rmcd the right to withhold congnt fmnl a promadoption of their child. ir~~rn the rncn who do not act suftickntlv p;lwzn~l to twalloud to VCIO a proptwd adoption. in spdfvinr prrtciwl~ wkh men arccnritlcd to consent. thrs swion 15 infucnc& h\: h;~ dqx& irw\. trw dciinwonof “presumed father ” ISI tire t~nii~vm l’;l~~*~tw;’ Act.,”
1 have a right to withhold consent to the adoption unless he suNives the gauntlet2 of the termination proceeding set forth in Article 3, Part 7.
3 As Artick 3, Part 7 indicates, however, not all fathers, including4 genuinely thwarted fathers, who appear in the adoption proceeding, or in aS procczding to terminate their parental rights, wilt be granted a right to withhold6 consent. At some point, the interest of the minor in remaining with the7 prospective adoptive parents has to be taken into account and may outweigh8 even a thwarted father’s claim for vindication of his “rights.” Additional9 discussion and analysis of the status of “thwarted” and other iathers is in the
10 Comment to Section 3-701.
1112131415161718
To recapitulate: the Act requires consent from mothers and fathers whohave actually established and maintained a custodial or substantive parentalrelationship with their child. Other parents or alleged parents are provided onlva right to notice. unless thev can prove that they have been wrongftilly thwartedin their effons to establish i parental relationship. in which case, they may --but not necessarilv -- be granted the right to block an adoption. See Ankle 3.Pan 4 for a list oi which individuals have a right to notice of an adoptionproceeding.
With regard to consent from an adoptee, the Act iollows the existingpractice in most states bv requirin,0 consent from adoptees who have attained acertain age, subject to th’e court‘s discretion to waive the consent of an adopteewho is incompetent or found to be too immature -- see Section Z-402 . When anadoptec’s consent is required. it is in addition to the consent of the parents orspecial guardian or agency. unless the adoptee is an adult (see Ankle 7). inwhich case. onlv the ad&t adoptee’s consent is required.0
2627‘85930.
Further discussion and analvsis oi the issues involved in determiningwho mav and who mw not consent ;o a child’s adaption ma\. be iound inHollingk. Consent to”Adopuon. ch. 2 in Adoptinn Lw md’ Pructiw(J.H.Hollinger. cd.. 1988 : Supp. 1992). See also. Comments to Article 3. Panof this Act.
11. SECTIOS Z-402. I 'EKSOSS ~WOS~ COSSFxr IS so-r
CI31. REQUIRED.
67
B-5
1 ARTICLE 3. GENERAL PROCEDURE FOR ADOPTION
2 PART 1. JURISDICTION AND VENUE
3
4 The Act provides that adoption proceedings are subject to the5 jurisdictional rules of the Uniform Child Custody Jurisdiction Act (UCCJA) and6 the federal Parental Kidnapping Prevention Act (PKPA). This cannot be7 accomplished, however, by simply including all existing provisions of the8 UCCJA and noting the full faith and credit requirement of the federal PKPA.9 One problem is that the definition of “custtiy determination- in the UCCJA and
10 the PKPA does not exprekly include a decree, judgment, or order of adoption;11 nor does it expressly exclude adoption proceedings. The PKPA definition of12 “custody determination” is “a judgment, decree, or other order providing for the13 custody or visitation of a child, and includes permanent and temporary orders,14 and initial orders and modifications,” 28 U.S.C.A. Q 1738A(b)(3). Under the15 UCCJA, 6 2, a “custody determination” is a “court decision and court orders16 and instructions providing for the custody of a child, including visitation rights,”17 but not including child support orders; and a “custody proceeding” includes18 proceedings in which @‘a custody determination is one of several issues, such as19 an action for divorce or separation, and includes child neglect and dependency20 proceedings.”
21222324252627
. 28293031323334353637
,3839
Comment
A number of states have faced the question of whether adoptionproceedings are within the scope of the UCCJA and the PKPA. To date, theresponses generally favor treating both uncontested and contested adoptionproceedings as “custody determinations” under the UCCJA and PKPA. See,e.g. Rogers v. Platt, 199 Cal. App. 3d 12W, 245 Cal. Rptr. 532 (1988) and64 I F.Supp. 381 (D.D.C. 1986), rev’d on other grounds, 8 14. F.2d 683(D.C.Cir. 1987); Gainm V. Olive, 373 S.E.2d 4 (Ga. 1988) followed by Ga.Code Ann. 6 19-g-42(3’) (expressly including adoption proceedings in the Idefinition of “custody proceeding”); Souzu v. Supetior Cl, 193 Cal. App.3d.1304, 238 Cal. Rptr. 892 (1987) (UCCJA & PKPA apply to stepparentadoptions); Foster V. Stein, 183 Mich. App. 424, 454 N.W.2d 244 (1990)(adoption proceedings come within Michigan’s version of UCCJA); In reAdoprion of B.E. WG., 549 A.2d 1286 (Pa. Super. Ct. 1988) (UCCJA appliesto adoption proceedings); In re Adoption of K. C. P., 432 So.2d 620 (Fla.Ct.App. 1983) (Florida adoption proceeding violated UCCJA because custodyproceedings with respect to minor were pending in New York). The authors ofAdoption LAW and Pumice (J.H.Ho!!inger, ed., Matthew Bender Co., 1988,Supp. 1992). strongly endorse the view that adoption proceedings are within thescope of the UCCJA and PKPA. Nonetheless, a few states, most notably New
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5 Even if this Act provides that the UCCJA and the PKPA apply to6 adoption proceedings, interstate jurisdictional conflicts would still arise. For7 example, when a prospective adoptive parent in State #l claims to be a “person8 acting as a parent” because a birth parent has transfened physical custody of a9 minor child to the prospective adopter, but the birth parent has not executed
10 consent to the adoption and continues to reside in State #2, which state has11 jurisdiction.3 What happens if a proceeding to terminate parental rights is12 pending in Forum #1 and prospective adoptive parents want to file an adoption13 petition in State #2 where they reside.3 The UCCJA provides that child neglect14 and dependency procazdings are “custody proceedings.” If that means that a15 pr&ing to terminate parental rights is also a custody proceeding under the16 UCCJA, then wouldn’t the adoptive parents in State #2 have to defer to the17 pending termination proceeding in State #l? What is the “home state” of a18 newborn? The state in which the birth parent resides? If there is no home19 state, is the state with “significant” connections and ‘substantial” evidence the20 state where the prospective adopters reside, or the state where the birth parent21 resides?
( 22 On balance, the Drafting Committee thinks it is preferable to resolve these23 disputes within the context of the UCCJA and PKPA instead of on the basis of24 jurisdictional rules at odds with these statutes. The UCCJA is now the law in25 all fifty states, and the PKPA’s full faith and credit provisjons apply to all26 custody determinations rendered consistently with the PKPA’s jurisdictional27 provisions. The PKPA’s provisions are similar, but not identical, to the28 provisions of the UCCJA. The goals of both statutes -- to reduce interstate29 custody disputes and to encourage jurisdiction in the state with the most30 connections to the issues involved in a custody determination -- are laudable,31 and are consistent with our intentions in drafting a Uniform Adoption Act.
323334
35 “an adoption proceeding under this Act shall be considered a custody36 determination under the UCCJA, and shall be subject to the provisions of the37 UCCIA and any additional requirements of the federal PKPA.”
38 This formulation would leave tw many ambiguities. For example, it is39 not obvious from a reading of the UCCJA that the “home state” language can be
York, have expressly excluded adoption procczdings from the definition of“custody proctcding” in their version of the UCCJA; N.Y. Dom. Rtl. L a w
6 7543) (see criticism of this exclusion in McKinnty Supp. PracticeCommentaries).
The Adoption Act attempts to tailor the UCCJA and PKPA provisionsto “fit” adoption proceedings. The Committee does not think it is sufficient to=Y .0
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(i) the minor and the minor’s parents, or the minor and the
prospective adoptive parent, have a significant connection with this State; and
(ii) there is available in this State substantial evidence
concerning the minor’s present or future we;
(4) the minor and the prospective adoptive parent are physically
present in this State and (i) the minor has been abandoned or (ii) it is ncctSsary
in an emergency to protect the minor because the minor has ken subjected to or
threatened with mistreatment or abuse or is otherwise neglect& or
(5) (i) it appears that no other State would have juritiiction under
prerequisites substantially in accordance with paragraphs (1) through (4), or
another State has declined to exercise jurisdiction on the ground that this State is
the more appropriate forum to bar a petition for adoption of the minor, and (ii)
it is in the best interest of the minor that this court assume jurisdiction.
(b) The [. . . . ] court of this State shall not assume jurisdiction over a
proceeding for adoption of a minor if at the time the petition for adoption is
filed a proceeding concerning the custody of the minor is pending in a court of
another State exercising jurisdiction substantially in conformity with [the
Uniform Child Custody Jurisdiction Act], unless the proceeding is stayed by the
court of the other State because this State is a more appropriate forum or for
another rwon. I
(c) If a court of another State has made a decree or order concerning
the custody of a minor who may be the subject of a proceeding for adoption in
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5 It is not appropriate for a COW to exercise jurisdiction over an adoption6 proceeding in a state where the adoptee is not living, or has not lived, and7 where only a parent lives. Therefore, the Act does not permit jurisdiction to be8 based solely on the residence of a parent, or solely on the basis of the physical9 presence of the adoptee and the prospective adoptive parents. The Act’s
10 jurisdictional provisions are intended to discourage adoptive parents from11 showing up for a few days in a “friendly” jurisdiction in order to commence andI2 complete an adoption proceeding. Although subsection (a)(l) may apm to13 allow forum-shopping for newborns placed immediately with prospective14 adopters, this possibility is mitigated by the requirement that there be substantial15 evidence about the minor’s present and future care in the state where the minor16 and prospective adopter are living.
17 Subsection (a)(3) permits jurisdiction to be exercised in a state in which I18 the agency that placed the child is located, but in which neither the minor’s19 birth parents nor the prospective adoptive parents reside. In order to discourage20 agencies from initiating adoption proceedings in allegedly ‘friendly” states21 despite a lack of “connectedness” to the adoptee, the Act requires that the22 “significant connection” and “substantial evidence” tests be met in addition to23 the requirement that the agency which placed the minor be locatcx! in the state.
24 Subsection (b) is intended to prevent the commencement of an adoption25 proceeding in State #2 while another custody proceeding, e.g. habeas corpus26 action, or request for visitation, or special guardianship, is pending in State #l.27 It is based on UCCJA 6 6.
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exercise jurisdiction over the adoption proceedings unless it is able to modify orterminate State #l’s custody or visitation decree. See subsection (c) of thissection. (Under the UCCJA, visitation orders are generally considerti a sub-species of a “custody order.“)
Consider the following situation in which application of the UCCJA andPKPA might have resulted in less heartache and delay. In tcmlq v. Ban, 343S.E.ed 101 (W.Va. 1986) and Lemfev v. Kaiser, 6 Ohio St3 258, 452 N.E.2d1304 (1983), the mother gave birth tb a child in her home state of Ohio, andsubsquently executed and promptly revoked her consent in Ohio. Before herrevocation, her child was placed with an adoptive couple in West Virginia. Themother began habeas corpus proceedings in Ohio and, while these proceedingswere pending, the couple filed an adoption petition in West Virginia. Althoughthe West Virginia court would normally have jurisdiction to hear the adoptionpetition under our subsection (a)(l) or (a)(2), the court would be precluded fromhearing the petition under subsection (b) because the habeas action was pendingin Ohio. Moreover, once the habeas action was complete, and the mother’sright to reclaim custody of. her child was recognized in an order by the Ohio
101
1 jurisdiction to modify a custody or visitation order issued by a court in another2 state. The Reponer believes that a COUR with jurisdiction to hear a petition for3 adoption cannot modify a valid custody or visitation order issued by a coup in4 another state unless the court hting the adoption also has valid jurisdiction to5 modify a custody determination under the UCUA and PKPA. A number of6 mnt interstate cases illustrate how complicated this can become -- for7 example, grandparents with visitation order in State #I, parents place child with8 unrelatd adopters in State #2, grandparents seek to modify visitation order in9 State #l to give them full custody, and adopters try to file a petition for
10 adoption in State #2 and ask the court to extinguish any rights the grandparents11 may have had. What is the rwnable response to this scenario? Even if we12 want to devise jurisdictional rules for adoption proceedings that are different13 from those of the UCCJA and PKPA, we may be constrained from doing so -14 unless the UCCJA and PKPA arc amended to carve out an explicit exemption15 for adoption proceedings from the “no modification unless...” provisions of the16 UCCJA and PKPA.
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23 The Act follows the venue Nles that exist in most states. Broad venue24 provisions facilitate access to the coun. If an adoption is contested, the court25 may apply the doctrine of inconvenient forum to transfer the case to a more2 6 suitable venue. *
SECTION 3402. VENUE. A petition for adoption may be filed in the
[.... ] COUR in the county in which:
(1) a petitioner resides, or is in military service, at the time of filing;
(2) the adopter resides: or
(3) an office of an agency that placed the adopter is located.
Comment
103El5
1 SECTION 3-704. GROUNDS FOR TERMINATING RELATIONSHIP.
2 (a) If a parent or alleged parent who is the subject of the petition
3 appears at the hearing and asserts parental rights, the court may order the
4 termination of any parental relationship of the individual to a minor child upon a
5 finding that termination is in the best interest of the minor and there is clear and
6 convincing evidence that:
7 (1) in the case of a minor under the age of six months at the time a
8 petition for adoption is filed, the parent or alleged parent has failed, without
9 go& cause, once he or she knew or should have known of the minor’s birth or
10 expected birth:
11 (i) to pay reasonable prenatal, natal, and postnatal expenses in
12 accordance with his or her financial means;
13 (ii) to make reasonable and consistent payments, in accordance
14 with his or her financial means, for the support of the minor;
15 (iii) to visit with the minor; and
16 (iv) to manifest an ability and willingness to assume legal and
17 physical custody of the minor, if, during this time, the minor was not in the
18 physical custody of the other .parent;
19 (2) in the case of a minor over the age of six months at the time a
2 0 petition for adoption is filed, the parent or alleged parent has failed, without
21 good cause, for a period of at least six consecutive months immediately
22 preceding the filing of the petition,
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(1) if the minor is not in the legal and physical custody of the other
parent, the individual is not able or willing promptly to assume legal and
physical custody of the minor, and to pay for the minor’s support, in accordance
with his or her financial means;
(2) if the minor is in the legal and physical custody of the other
parent and a stepparent, the individual is not able or willing promptly to
establish and maintain contact with the minor and to pay for the minor’s
support, in accordance with his or her financial means;
(3) placing the minor in the inditiidual’s legal and physical custody
would pose a risk of substantial harm to the physical or psychological well-
being of the minor because the circumstances of the minor’s conception, the
individual’s behavior during the mother’s pregnancy or since the minor’s birth,
or the individual’s behavior with respect to other minors, indicates that the
individual is unfit to maintain a relationship of parent and child with the minor];
or
(4) failure to terminate would be detrimental to the minor. In
determining detriment, the court shall consider any relevant factor, including the
individual’s efforts to obtain or maintain legal and physical custody of the
minor, the individual’s ability to pay for the minor’s support, the age and
custodial environment of the minor before being placed for adoption, the quality.
of any previous relationship between the individual and the minor and between
the individual and any other minor children, the duration and suitability of the
133B-19
1 or reclaim custody of their child. This is the case even though they probably2 did not start out as Section 2-401 “consent parents.”
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23 Under subsection (a)(2), a parent of a child who is six months or older24 may have parental rights terminated if he or she fails to maintain a substantive25 relationship with the child -- fails to support and fails to communicate or visit --26 and is unwilling or unable to establish or rt-establish a genuine parent-child27 relationship. This is a ground for termination that is most likely to arise in the28 context of stepparent adoptions, but can arise in other contexts as well, State29 appeals courts have generally upheld the constitutionality of this ground for30 terminating parental rights; see the many cases cited in J. Hollinger, Adoprion31 Low and Pmcke ch. 2 and 1992 Supp. (Matthew Bender Co., 1988-92).
’ 32 . Subsection (a)(4) permits termination for serious and violent offenses33 by one parent against another. We are positing that it is not in a child’s best34 interest to continue a parental relationship with a father who has rap4 the35 child’s mother, or a parent who has battered and abused the other parent. The36 child protection laws of many states permit termination of a parent’s rights on37 the ground that the parent was physically or sexually abusive to a minor,38 including the parent’s other children, but it is the Reporter’s impression that39 most states do not recognize a father’s rape of his child’s mother as a specific4 0 ground upon which his rights can be terminated. BUT, Maine and Pennsylvania
A parent or alleged father who cannot prove good cause for faDwe toact apalsentally~ can have his or her rights terminated if there is clear andconvincing evidence that he or she did not perform specific parental duties --did not seize his or her parenting opportunities and turn them into a genuineparenting relationship to the minor child.
Hence, under subsection (a)(l) a father’s rights may be terminated onthe basis of his pre-birth behavior, if he knew or reasonably should have brownabout the mother’s pregnancy, but did not manifest an ability or willingness toassume parental duties. State courts have found it constitutionally permissible totuminate a father’s status for prc-birth “abandonment* of an unwaj motherwhom he knew was pregnant. See, e.g. In te Adopribn of Doe, 543 So.2d 741(Fla. 1989) (unwed father’s failure to support mother during pregnancy when heknew of pregnancy, and had the means to pay for some of her birth-relatedexpenses, justifies the termination of his parental rights even though he filed anaffidavit of paternity after the child was born.) See, also, In re Baby Girl K.,335 N.W.2d. 846 (wis. 1983), appeal dismissed, 104 S.Ct. 1262 (father’s pre-birth neglect of mother and refusal to pay for prenatal care can be evidence offailure to assume parental responsibilities, and can justify termination ofparental rights); Doe v. Attorney W, 210 So.Zd 1312 (Miss. 1982) (father’srights terminated on basis of abandonment of unborn child).
135B -2 1
1 in an adoption proceeding involving a newborn, a number of state appeals coum2 (esp. NY, CAL, DC, Iowa, NC) have been inclined to protect unwed fathers3 who have been “thwarted’ in their efforts to grasp the “opportunity interest”4 they have because of their initial biological connection to a child. This5 protection does not last indefinitely, however. Failure of even a thwarted father6 to act promptly to grasp that opportunity will justify preventing the father from3 blocking the minor’s adoption. “Promptly’ arguably means as soon as possible,8 as masured from the time of the minor’s birth or placement for adoption.
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Among the important recent state appellate court Nlings on theproblems posed by thwarted fathers are: In w RaqueJ Mwic X. 1, 76 N.Y.2d 387,559 N.Y.S.2d 855 (1990) (unwed father who is physically unable to developcustodial relationship with newborn child, because mother and child are livingwith mother’s husband, is entitled to veto his child’s adoption by ‘strangers” IFhe acts promptly to establish a legal and emotional bond to his child); In tcRoben O,, 80 N.Y.Zd 254, 390 N.Y.S.2d 37 (1992) (although not “thwarted”by birth mother, father claimed he was unaware of his child’s birth until afterthe adoption of his child was final; his attempt at that time to ass&t parentalrights is not “prompt” within Ruquel ruling and he cannot challenge adoption’svalidity; “promptness is measured in terms of the baby’s life, not by the onsetof the father’s awareness); In re Adoption of Clark, 393 S.E.2d 791 (N.C.1990) (failure by North Carolina Dept. Human Services to exercise duediligence in ascertaining putative father’s whereabouts prevents state fromdenying father chance to file legitimation petition); In re B&y Boy C., 581A.2d 1141 (D.C. App. 1990) (state-licensed adoption agency failed to provideunwed father with minimum notice to enable him to assert his right to claimcustody before child was plactd with prospective adopters; consequently he hasnot lost his presumption of fitness and he has a right to object to proposedadoption unless adoptive parents show by clear and convincing evidence that itis in the best interest of the child to approve the adoption), [on remand,adoption was approved); In IV Keky S., 823 P.2d 1216 (Cal. 1992). (UniformParentage Act distinction between the “consent” rights of presumed fathers andthe lesser “notice and opportunity to be heard’ rights of unwed alleged fathersin adoption proceedings is unconstitutional when applied ‘to an unwed fatherwho, once he is aware or should be aware of child’s birth, has ‘sufficiently andtimely demonstrated a full commitment to his parental role.“)
36 The message from these cases -- esp New York and California -- may37 be that the only constitutionally permissible basis for terminating the rights of38 fathers, who act promptly (as measured from child’s birth or date of placement)39 to manifest their capacity to assume a parental role, is to prove them “unfit” on.40 clear and convincing evidence. By contrast, the suggestion from the D.C.41 . Court of Appeals is that a fit thwarted father’s right to veto a proposed adoption42 may be overcome by clear and convincing evidence that it is in the best interest
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1 that he may have been deprived of wrongfully by the birth mother or others, 5)2 society’s interest in keeping children out of “legal limbo.”
3 The Drafting Committtt is also considering whether fathirs who have4 been thwarted in their efforts to establish a parental relationship to their child5 should be ‘compensated” by giving them a legal remedy other than a right to6 withhold consent to the child’s adoption. A minor’s interest in remaining in a7 stable prospective adoptive environment, and a birth mother’s interest in having8 the child’s placement continue, has to be balanced against the interest in9 rectifying the wrong done to a thwarted father. It may not be reasonable -- or
10 constitutionally required -- to rectify that wrong by allowing him to stop the11 adoption of a child with whom he has not had any previous relationship except12 for his biological connection. After all, the very notion of being “thwarted”13 means that, in cases involving newborns or infants, the father has been unable14 to do more than attempt to establish a substantive parenting relationship. He15 has not been responsible for the child; he has not paid support, etc. Perhaps a16 thwarted father should be able to recover damages against a mother, agency,17 court, or adoptive parents who wrongfully deprived him of his constitutionally18 protected right to “grasp the opportunity’ he had as the child’s biological father.
19 If a damages action for thwaned fathers is arguably more appropriate in20 some situations than giving these fathers custody of the child, perhaps a similar21 remedy should be available to a birth parent -- mother or father -- whose22 consent or relinquishment is obtained fraudulently or by duress. Instad of23 “automatically” allowing the defrauded birth parent to obtain custody of a child,24 who may have resided for a substantial period of time with innocent adoptive25 parents, a damages remedy might rectify the wrong done to the birth parent.26 The Drafting Committee has not resolved these issues, in part because we do27 not want implicitly to encourage fraud, duress, or “thwarting” by suggesting28 that a truly wronged parent may not be able to claim or reclaim custody of a29 child whose adoptive placement is tainted. Some people suggest that allowing30 visitation by a thwarted or defrauded parent, but leaving the adoptive placement31 intact, would help resolve these issues. But, in the absence of willingness by32 the adoptive parents to permit such an arrangement, and some demonstrable (not33 mealy hypothesized) benefit for the adoptce, visitation may simply leave34 matters perpetually unresolvd. The Committee continues to wrestle with the35 question of whether a man who has not established an actual relationship with a36 minor by the time the minor is placed for adoption, regardless of his rcxons for37 not doing so, should be given any role in an adoption proceeding, except38 perhaps for an opportunity to comment orwhether the proposed adoption will39 serve the minor’s best interest.
c. 139B-25
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ON APPLICATIONS FOR $TAy
JUSWB &AWMIJN, with whom JUSTWE ~c%X?2JORjobs, dianting.
This is 8 we that taxhe the raw nerves of ii&&srelationships. We hwe before w, in Jessica, a cud ofbender gears who for her entire lffe Iss buzz nart;ured bythe DMt a loving couple led to believe through 121sadoption process and the then-single biohgical. mother’sCOWBR~, that Jessica ww theirs, Now, the biologicalfat&r appem, marries the mother, and Aims paternal$tz%tw tOWard J%C;Gica
The Suprexae Court of Iowa has ruled that Jessica mustbe retwmd to her biolcqical parents regardless of whet;hermch action would be in her best interestr3. See In tkfntemt ofB.G.C., Nos, 20’7/91-476,92--49 (Sept. 23,1992),Jewica, through her next fried, filed an action in &&himgm state NJ& chiming that she has a constitutiorraltight to a detehtian of her best interests in awardingcustdp The Ihrjoer~ &6 filed suit, arguing &at federal